REPORTABLECASE NO: SA 7/2017

IN THE SUPREME COURT OF NAMIBIA

In the matter between:

MINISTER OF SAFETY AND SECURITY First AppellantPROSECUTOR-GENERAL Second Appellant GOVERNMENT OF THE REPUBLIC OF NAMIBIA Third Appellant

and

RICHWELL KULISESA MAHUPELO Respondent

CORAM: SHIVUTE CJ, CHOMBA AJA and MOKGORO AJA

Heard: 4 July 2018Delivered: 28 February 2019

Summary: Mr Mahupelo (who has been referred to in this judgment as ‘the respondent’) was one

of the accused persons in the protracted criminal trial involving some 126 accused

persons who were charged in the High Court of Namibia, amongst others, with the

crimes of high treason, murder, attempted murder and several other crimes and

offences. The charges stemmed from activities leading to an armed attack in and

around the town of Katima Mulilo in Zambezi Region with the apparent purpose of

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achieving secession of the Caprivi Region (as Zambezi Region was then known) from

the Republic of Namibia. At the end of the prosecution case in the criminal trial, Mr

Mahupelo was discharged as the prosecution failed to establish a case against him. He

later sued the Minister of Safety and Security, the Prosecutor-General and the

Government of Namibia (the defendants) for wrongful and malicious institution of the

prosecution, claiming N$15 321 400 in damages from them. The main claim of the

institution of the prosecution was amended to introduce an alternative claim for the

wrongful and malicious continuation of the prosecution. The High Court dismissed the

claim for the wrongful and malicious institution of the prosecution, but upheld the

alternative claim for the ‘malicious continuation of the prosecution without reasonable

and probable cause.’ The High Court held that as the delict of ‘malicious continuation of

a prosecution’ was not known at common law, it had to develop the common law in line

with the constitutional ethos to accommodate the delict. It accordingly developed the

common law and held that the Prosecutor-General (the PG) was liable for maliciously

maintaining the prosecution after 2011 when it became clear that the State had no

evidence leading to the respondent’s conviction.

The defendants - now appellants - have appealed to the Supreme Court against the

decision of the High Court. The appellants argued, amongst other things, that the High

Court was wrong to have found that the prosecutors who were delegated by the PG to

prosecute Mr Mahupelo had no reasonable and probable cause to prosecute him and

that the PG was therefore liable for damages. The appellants argued that there was

ample evidence during the criminal trial implicating Mr Mahupelo in the commission of

the crimes and offences and on the basis of which it could have been found that there

was reasonable and probable cause to continue with his prosecution.

The Supreme Court agreed with the appellants’ argument that there was reasonable

and probable cause to have continued with the prosecution of Mr Mahupelo. The

Supreme Court reasoned that the High Court had adopted a wrong approach to the

consideration of the evidence against the respondent led during the civil claim, pointing

out that the evidence and considerations necessary in establishing whether there was

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reasonable and probable cause and the lack of malice (as the law requires) to continue

with the prosecution were different from those necessary to prove the guilt of an

accused person in a criminal trial. After evaluating the evidence as a whole, the

Supreme Court held that there was evidence establishing reasonable and probable

cause as well as the lack of malice in the prosecution of Mr Mahupelo.

In the High Court, Mr Mahupelo pleaded that if his claim for malicious continuation of

the prosecution did not succeed, then the court should award him constitutional

damages for the violation of his rights. This issue was, however, not decided by the

High Court as that court found that the claim for malicious maintenance of the

prosecution was well founded. The Supreme Court held that it was inappropriate for this

alternative claim to be decided by it for the first and final time as a party who may be

dissatisfied with its decision in this regard will not have a chance to appeal. It has

accordingly declined to decide the issue and referred the matter back to the High Court

for that court to decide it first.

APPEAL JUDGMENT

SHIVUTE CJ (CHOMBA AJA & MOKGORO AJA concurring):

[1] The decision to initiate and maintain the prosecution of an accused person forms

a central part of the constitutional obligation of the prosecutorial authority. While it is

imperative that prosecutors are able to perform their functions without the fear of

attracting civil liability, their constitutional mandate should nonetheless be executed in a

manner that ensures a fair trial for the accused persons they are prosecuting. Accused

persons must be accorded their full rights and must not be subject to baseless

prosecutions. At the heart of this appeal lies the intricate question of the extent to which

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the prosecutorial authority may be held liable for a delictual claim for maintaining the

prosecution allegedly without reasonable and probable cause after an identifiable event.

[2] The appeal is against the judgment and order of the High Court granting a claim

of malicious maintaining of a prosecution in favour of the respondent against the second

appellant, the Prosecutor-General. The claim against the second appellant is founded

on the allegations that the Prosecutor-General (the PG) maintained the prosecution of

the respondent maliciously and without reasonable and probable cause from November

2011 onwards.

Background

[3] This case has had a long history, with the events giving rise to it having occurred

as far back as 1999. On 2 August 1999 a group of people who either belonged to or

were sympathetic to an outfit called the Caprivi Liberation Army attacked several state

installations at or around Katima Mulilo with the apparent purpose of furthering the

campaign for the then Caprivi Region (now Zambezi Region) to secede from the

Republic of Namibia. As a result of this violent attack, nine people were killed, others

injured and property destroyed. In the aftermath of the attack, several people were

arrested, detained and prosecuted. The respondent, in this appeal, was among the

persons so arrested, detained and prosecuted.

[4] The respondent together with 125 co-accused persons, were then charged with

various serious crimes and offences which included high treason, sedition, public

violence, murder and robbery in the Grootfontein Magistrate’s Court and were

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subsequently arraigned on those charges in the High Court. The prosecution relied on

the doctrine of common purpose and on conspiracy to commit the offences and crimes

listed on the indictment.

[5] The State led evidence against the respondent and at the close of the State

case, the respondent was found not guilty and discharged in terms of s 174 of the

Criminal procedure Act 51 of 1977 (the Act). Subsequently, the respondent sued the

Minister of Safety and Security, the PG and the Government of Namibia being the first,

second and third appellants respectively herein for damages in the High Court in the

sum of N$15 321 400.

The pleadings

[6] The main claim in the action was for malicious prosecution and was directed

against the first appellant and the PG. The respondent in the alternative sought

damages against the PG for the alleged malicious continuation of his prosecution. In the

further alternative, the respondent brought a claim based on constitutional damages in

the event that the claim for malicious prosecution fails.

[7] The basic allegation in the respondent’s claim is that the appellants had acted

without reasonable and probable cause and with malice when they initiated the

prosecution being fully aware that they did not have sufficient evidence to convict him.

The respondent further alleged that the appellants were malicious in persisting with the

criminal trial whilst being aware that the witnesses who testified against him failed to

implicate him in the commission of the crimes and offences.

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[8] The appellants defended the claims. In a nutshell, the appellants conceded that

they set the law in motion, instigated and maintained the prosecution against the

respondent but denied that it was without a reasonable and probable cause or that it

was actuated by malice.

Pre-trial proceedings

[9] The matter became the subject of the usual judicial case management process in

the High Court. The parties agreed to separate the merits from the quantum, with the

matter proceeding only on the merits.

Principal submissions in the High Court

[10] The respondent in support of the main claim pleaded that the first appellant,

through his employees, being the Namibian Police, had maliciously and without

reasonable and probable cause placed false information before the PG with the object

of having him prosecuted for high treason and other charges contained in the

indictment. The respondent pleaded that in consequence of the false information; he

was arrested and subsequently prosecuted on the charges.

[11] The respondent further pleaded that when the PG and/or her employees set the

law in motion or continued with his prosecution, they had done so without having

sufficient information at their disposal which could substantiate the charges preferred

against him or justify his prosecution on such charges. The respondent claimed that the

PG and/or her employees instigated his prosecution without having reasonable belief in

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the veracity of the information before them. He thus contended that his arrest, detention

and resultant prosecution were instituted maliciously and without a reasonable or

probable cause.

[12] As to the first alternative claim, the respondent pleaded that in the event that the

principal claim failed, the common law should be developed to include a claim for

damages for maintaining the prosecution maliciously and without reasonable and

probable cause. The respondent argued that a defendant in a civil case ought to be held

liable for damages in instances where the defendant lacked reasonable and probable

cause for the prosecution, but they nevertheless maintained the prosecution to the end.

[13] The respondent’s case was that the appellants, in particular the PG or her

employees lacked reasonable and probable cause to maintain the prosecution from

March 2006, alternatively from November 2011 onwards, after all witnesses who

testified against him completed their testimonies and all the evidence that could have

implicated him was led at that stage. The respondent maintained that despite the

knowledge of the lack of sufficient evidence to implicate him, the PG and or her

employees failed to stop the prosecution.

[14] It was the respondent’s further contention that had the PG and/or her employees

continuously reviewed the evidence in support of the charges against him, they should

at the very least from November 2011, have discontinued the proceedings against him.

[15] He also argued that the PG ought to have separated the trials of the accused

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persons between the group of accused persons referred to by the PG and/or her

employees as the ‘attackers’ and the further groups identified as the ‘leadership group’

and the ‘support group’. The respondent claimed that if the trials had been split in

accordance with the groups referred to above, the duration of his trial would have been

shorter and he would have been released earlier than he was eventually released.

[16] As to the second alternative claim, the respondent contended that should the

claim for malicious prosecution fail, the appellants through their conduct violated his

rights contained in Arts 7, 8, 11, 12, 13, 16, 19 and 21 of the Namibian Constitution1 and

as such, were liable for constitutional damages. According to the respondent, as a result

of his arrest, detention and subsequent prosecution and the unreasonable delay in

finalising his criminal trial, he suffered loss and damage. As such, so it was alleged, he

was entitled to an award of compensation in terms of Art 25(3) and Art 25(4) of the

Constitution.

[17] The appellants, on the other hand, denied as regards the main claim that the

arrest and subsequent detention of the respondent was wrongful and unlawful. They

maintained that the arrest of the respondent was based on a reasonable suspicion that

he had committed the crime of high treason and the other crimes and offences set out in

the indictment. The appellants claimed that the evidence collected against the

respondent provided sufficient grounds for the members of the Namibian Police to hold

1 These Articles concern the protection of liberty, respect for human dignity, prohibition of arbitrary arrest and dentition, the right to privacy, the right to property, the right to practise a culture and the protection of fundamental freedoms respectively.

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a reasonable belief that the respondent had committed the crimes and offences

contained in the indictment.

[18] The appellants further contended that the decision to prosecute the respondent

was made in accordance with the prosecutorial powers afforded to the PG by Art 88 of

the Namibian Constitution. They maintained that the employees of the PG had carried

out an objective assessment of the evidence before instituting the prosecution and

came to a reasonable conclusion that there was a case against the respondent.

[19] Regarding the issue of malicious continuation of the prosecution, the PG

contended that the prosecution against the respondent could not be stopped as from

March 2006 alternatively from November 2011 because neither the PG nor her

employees knew that all the evidence that could implicate the respondent had been

presented and that not all witnesses who could implicate the respondent had completed

their testimonies.

[20] The PG further argued that she could not stop the prosecution at the stages as

proposed by the respondent for the following reasons: (a) that it would have been

prejudicial to the State’s case as witnesses could implicate the accused persons they

had not referred to in their written statements; (b) that the appellants believed that they

had established common purpose and conspiracy from the evidence and witness

statements, and (c) that there was a likelihood that the defence case could supplement

the State’s case.

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[21] In response to the constitutional claim, the appellants countered that the remedy

sought by the respondent was inappropriate as Art 12 of the Constitution had its own

remedy in that where a trial does not take place within a reasonable time the accused

person may apply for his or her release. The appellants argued that Art 12 (1)(b) of the

Constitution provided for both a right and remedy for a breach, and the remedy in this

instance was release from trial. The appellants thus contended that despite being

vested with the remedy in terms of Art 12(1)(b), the respondent had failed to invoke

such a remedy and accordingly, it would be inappropriate to award constitutional

damages to him.

[22] As to the respondent’s contention regarding the failure to separate the trials in

specific groups, the appellants argued that the respondent was legally represented and

the defence team ought to have asserted his corresponding right to apply for separation

of trials in terms of s 157 (2) of the Act, but failed to do so. The appellants further

maintained that it would have been difficult to separate the trial in circumstances where

the prosecution’s case was based on common purpose and conspiracy. They also

contended that it was speculative on the respondent’s part to state that his trial could

have been concluded more speedily had the trial been separated according to the roles

allegedly played by the accused persons in the attack.

Findings by the High Court

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[23] As for the main claim, the court a quo held that in order to succeed in an action

for malicious prosecution, the plaintiff must prove all five requirements2 set out in

Akuake v Jansen van Rensburg.3

[24] After evaluating the law and the facts, the High Court held that the respondent

had failed to prove that the Namibian Police did anything more than place the available

evidence before the PG, leaving it to the PG to independently decide whether or not to

prosecute. Accordingly, the principal claim against the first appellant and the PG was

dismissed.

[25] In dismissing the principal claim, the High Court held that the PG not only had

sufficient facts and information at her disposal to make the decision to initiate the

prosecution, but she also had a reasonable belief in the facts and information upon

which she based her choice to prosecute the respondent. The court further held that

there was no evidence pointing (a) to the PG having instigated the prosecution with an

intention to injure the respondent or (b) to the proceedings having been instituted in bad

faith. The remaining issue for decision was thus whether the PG and/or her employees

had acted without reasonable and probable cause, and with malice in maintaining the

prosecution beyond November 2011.

[26] As to the claim based on malicious continuation of the prosecution, after

considering the requirements for the successful action for malicious prosecution, the

High Court held that the element of continuing or maintaining criminal proceedings

2 More about them later in this judgment.3 2009 (1) NR 403 HC

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beyond a stage where it could not be said to have been reasonable and probable to do

so was not recognised in our common law and had also not previously been dealt with

by our courts. The court was thus of the view that the common law should be developed

to introduce a delictual claim based on continuing or maintaining the prosecution without

reasonable and probable cause.

[27] The court was of a further view that like in the case of malicious prosecution, the

plaintiff seeking for damages for malicious continuation of the prosecution is also

required to satisfy the requirements set out in Akuake v Jansen van Rensburg.

[28] The court held that although the initiation of criminal proceedings was bona fide,

it became clear at a certain point that the evidence against the respondent could not

sustain a conviction and that the continuation of the criminal trial after that realisation

was actionable and that malice could be inferred from the conduct of the prosecutors.

The court was persuaded that, on a balance of probabilities, the PG and or her

employees lacked reasonable and probable cause to continue with the prosecution from

November 2011 onwards, being fully aware that three of the four witnesses who

testified against the respondent failed to identify him in court, and further that the PG

failed to establish any inculpating evidence on the part of the respondent or anyone

associated with him in the alleged commission of the offences.

[29] The court was also of the opinion that the request by the PG and/or her

employees to carry out further investigations after the review of the evidence during

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November 2010 was an indication that the PG did not have sufficient evidence upon

which the respondent could be convicted. In conclusion, the court held that the PG

lacked reasonable and probable cause from November 2011 onwards.

[30] Regarding the issue of malice, the High Court held that during the course of the

proceedings, there was evidence of malice on the part of the PG and/or her employees.

The court inferred malice from its finding that the PG lacked reasonable and probable

cause to maintain the prosecution from November 2011. It stated that the failure of the

prosecution team to do appraisals of the evidence continually points to the evidence of

malice on their part. The court further inferred malice from the failure of the PG and/or

her employees to review the evidence against the respondent for a period of six to ten

years after he was indicted.

[31] The High Court also reasoned that the State’s failure to provide sufficient

resources to avoid a violation of the respondent’s rights, also points to evidence of

malice. In light of the above findings, the court held that the respondent had established

the requirements of malicious prosecution it was called upon to decide. The correctness

of that decision has been challenged on a number of grounds before this court. It is thus

opportune to deal with these legal challenges. But before doing so, it is necessary to

set out briefly the law on malicious prosecution and the role the Prosecutor-General is

expected to play in our constitutional set up.

The law on malicious prosecution and Prosecutor-General’s constitutional obligations

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[32] Professor McQuoid-Mason4 defines malicious prosecution as ‘an abuse of the

process of the court by intentionally and unlawfully setting the law in motion on a

criminal charge.’ He points out that generally actions for malicious prosecution are

discouraged on the grounds of public policy.5 This is so because the exercise of

prosecutorial discretion in the prosecution of cases is central to the criminal justice

system. It is essential that prosecutors perform this function without the fear of attracting

civil liability. This imperative, of course, has to be balanced with the rights of citizens to

be protected against baseless prosecutions. In Namibia, the Prosecutor-General and

her staff occupy an important position within our constitutional milieu. It is for this

consideration that Art 88(2) of the Namibian Constitution grants to the Prosecutor-

General the power to prosecute ‘subject to the provisions of this Constitution. . .’ It is

thus a sacred duty of a prosecutor to ensure that the trial of an accused person is fair in

line with his or her obligation to prosecute subject to the Constitution and the law.

[33] The House of Lords in Gregory v Portsmouth City Council6 explained the tension

between the two competing imperatives - the need to ensure that prosecutors are able

to perform their functions without the fear of attracting civil liability and the necessity of

protecting accused persons against baseless prosecutions - as follows:

‘A distinctive feature of the tort is that the defendant has abused the coercive powers of

the state. The law recognises that an official or private individual, who without

justification sets in motion the criminal law against a defendant, is likely to cause serious

injury to the victim. It will typically involve suffering for the victim and his family as well as

4 McQuoid-Mason ‘Malicious Proceedings’ in Joubert et al The Law of South Africa (LAWSA) (2nd Ed), 2008) Vol 15 Part 2, at para 315. 5 Id. para 311 6 2000 1 All ER 560 (HL)

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damage to the reputation and credit of the victim. On the other hand, in a democracy,

which upholds the rule of law, it is a delicate matter to allow actions to be brought in

respect of the regular processes of the law. . . The fear is that a widely drawn tort will

discourage law enforcement. . .’

[34] The Supreme Court of Canada in Miazga v Kvello Estate7 explained the

approach to be adopted when claims of malicious prosecution against the Attorney-

General as opposed to claims against private litigants are considered. The court did

this against the backdrop of the historical origin of the claim for malicious prosecution.8

The court said that care should be taken to not simply transpose the principles

established in civil suits between private parties to cases involving the prosecution

without necessary modifications. Due regard had to be given to the constitutional

principles governing the office of the Attorney-General. It is for this reason that the

Supreme Court of Canada has adopted ‘a very high threshold for the tort of malicious

prosecution in an action against a public prosecutor.’9

[35] The Court pointed out that an allegation of malicious prosecution constitutes ‘an

after-the-fact attack’ on the propriety of the prosecutor’s decision to initiate or continue

criminal proceedings against a plaintiff. It pointed out further that the decision to initiate

or continue criminal proceedings lies at the core of prosecutorial discretion, which

enjoys constitutional protection. At para 47 the court observed:

7 2009 SCC 518 At para 429 At para 44

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‘In exercising their discretion to prosecute, Crown prosecutors perform a function

inherent in the office of the Attorney General that brings the principle of independence

into play. Its fundamental importance lies, not in protecting the interests of individual

Crown attorneys, but in advancing the public interest by enabling prosecutors to make

discretionary decisions in fulfilment of their professional obligations without fear of

judicial or political interference, thus fulfilling their quasi-judicial role as “ministers of

justice”’.

[36] The court pointed out that a stringent standard must be met before finding of

liability on the part of a prosecutor is made. This ensures that courts ‘do not simply

engage in the second-guessing of decisions made pursuant to the Crown’s

prosecutorial discretion.’10 At para 51, the court observed that liability should lie where;

‘…a Crown prosecutor’s actions are so egregious that they take the prosecutor outside

his or her proper role as minister of justice, such that the general rule of judicial non-

intervention with Crown discretion is no longer justified.’11

[37] I endorse this approach. For the exercise of discretion by a prosecutor to justify

judicial intervention must be an egregious type of conduct identified by the Canadian

Supreme Court in Miazga v Kvello Estate. Error of judgment in the exercise of the

prosecutor’s discretion, even negligent error is not sufficient.

[38] The elements that must be alleged and proved in a claim for malicious

prosecution (on the merits and quantum) were set out by Damaseb JP in Akuake v

Jansen van Rensburg.12 These requirements are:

10 At para 4911 Para 5112 Cited in footnote 3 above.

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a) The defendant must have instituted or instigated the proceedings;

b) The defendant must have acted without reasonable and probable cause;

c) The defendant must have been actuated by an improper motive or

malice (or animo injuriandi);

d) The proceedings must have terminated in the plaintiff’s favour, and

e) The plaintiff must have suffered damage (financial loss or personality

infringement).

Malice and/or animus injuriandi ?

[39] There appears to be divergent views in the cases and in the leading text books

as to whether in a claim for malicious prosecution in South African law the plaintiff must

prove both animus iniuriandi and malice. As far as I was able to ascertain, this is a

matter that has hitherto not been decided by our courts.

[40] Professor McQuoid-Mason in LAWSA points out that malice means that the

defendant had either an absence of belief in the guilt of the accused (which may include

recklessness), or an improper or indirect motive other than that of bringing the plaintiff to

justice. He states that traditionally malice has been distinguished from animus iniuriandi.

Malice is concerned with the question of lawfulness whereas animus iniuriandi refers to

fault. Animus injuriandi (which will generally be presumed under the actio iniuriarum) is

required as the fault element, and malice should still be required to establish

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wrongfulness. The learned professor states that in practice courts ‘appear to pay mere

lip service to the concept of animus injuriandi and only enquire into the motives of the

defendant.’13

[41] The South African Supreme Court of Appeal has held that what has to be proved

is animus injuriandi.14 The same court pointed out in Relyant Trading (Pty) Ltd v

Shongwe and another15 that:

‘Although the expression “malice” is used, it means, in the context of the actio

iniuriarum, animus iniuriandi. In Moaki v Reckitt & Colman (Africa) Ltd and another,

Wessels JA said:

“Where relief is claimed by this actio the plaintiff must allege and prove that the

defendant intended to injure (either dolus directus or indirectus). . .”’

[42] This dictum, so says Van Heerden JA in Minister for Justice & Constitutional

Development v Moleko,16 means that animus injuriandi, and not malice must be proved

before the defendant can be held liable for malicious prosecution as injuria.17 In

Rudolph and others v Minister of Safety and Security and another , the court explained

what is required by reference to its judgment in Moleko:18

‘The defendant must not only have been aware of what he or she was doing in instituting

or initiating the prosecution, but must at least have foreseen the possibility that he or she

was acting wrongfully, but nevertheless continued to act, reckless as to the 13 LAWSA para 328, 32914 Rudolph and others v Minister of Safety and Security and another 2009 (5) SA 94 (SCA) para 1815 2007 1 All SA 375 (SCA) at para 5 16 [2008] 3 All SA 47 (SCA) at para 62 17 At para 62 18 Minister for Justice and Constitutional Development v Moleko [2008] 3 All SA 47 (SCA) para 64

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consequences of his or her conduct (dolus eventualis). Negligence on the part of the

defendant (or, I would say, even gross negligence) will not suffice.’ (Emphasis added)

[43] This is a salutary practice that in my view should be followed by our courts. It

follows that in Namibia, animus iniuriandi is one of the requirements that must be

proved before the defendant can be held liable for malicious prosecution. I note that

counsel on both sides support this approach.

[44] Professor McQuoid-Mason distinguishes animus iniuriandi from malice in the

following terms:

‘Animus iniuriandi includes not only the intention to injure but also consciousness of

wrongfulness, and is distinguishable from improper motive or malice. Malice is the

actuating impulse preceding intention.’19

[45] The existence of malice may point to the existence of animus iniuriandi, as

indicating an awareness of the wrongfulness of the action.20 The position is explained in

Neethling’s Law of Personality as follows:

‘Animus iniuriandi (intention) means that the defendant directed his will to prosecuting

the plaintiff (and thus infringing his personality), in the awareness that reasonable

grounds for the prosecution were (possibly) absent, in other words, that his conduct was

(possibly) wrongful (consciousness of wrongfulness). It follows from this that the

defendant will go free where reasonable grounds for the prosecution were lacking, but

the defendant honestly believed that the plaintiff was guilty. In such a case the second

19 LAWSA para 32120 LAWSA para 322

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element of dolus, namely of consciousness of wrongfulness, and therefore animus

injuriandi, will be lacking. His mistake therefore excludes the existence of animus

injuriandi.’21

[46] Returning to the requirements for successful claims for malicious prosecution,

the High Court found correctly that in the present matter the first and last requirements

set out in Akuake v Jansen van Rensburg above were common cause, in that the

appellants had set the law into motion and the prosecution of the respondent terminated

in his favour. It will be recalled that the parties had agreed that the fifth requirement,

namely the quantum for damages, will be decided only once the court had determined

the appellants’ liability. It is against the backdrop of the above legal principles and

considerations that the issues on appeal ought to be decided. I turn then to the

consideration of those issues.

The issues on appeal

[47] The first issue that falls for determination is whether the High Court was justified

in developing the common law to include a claim for malicious continuation of the

prosecution. The second issue is whether the court a quo was correct in holding that

the PG maintained the prosecution after November 2011 maliciously and without

reasonable and probable cause. Also a matter for decision is the question whether the

appellants are liable to the respondent for constitutional damages, in the event that the

claim for malicious continuation of the prosecution fails.

21 Neethling’s Law of Personality (2nd Ed) page 181.

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Was the court a quo correct in holding that the common law needed development to

include the delict based on malicious continuation of a prosecution?

[48] Mr Budlender, who appeared for the appellants together with Mr Marcus and Mr

Namandje, firstly submitted that it was not necessary for the court a quo to have

developed the common law in order to accommodate the element of malicious

continuation of a prosecution as opposed to its initiation as this delict appears to have

already been accepted at common law.

[49] In support of this proposition, counsel relied on a passage in the book by

Maasdorp22 and argued that as regards the requirement of reasonable and probable

cause, the common law establishes that this element must be present not only at the

beginning of a prosecution, but throughout the course of the prosecution up to its very

termination.

[50] Counsel also referred to Van Noorden v Wiese23, in which De Villiers CJ

remarked that he did not know of any case in which it was held that if a person believed

an offence had been committed, and other facts were brought to his notice which

showed that no offence was committed, he would still be justified in proceeding in his

original intention. According to the learned Chief Justice, if a person had a reasonable

and probable cause at the initiation stage, but because of any subsequent information

received by such person the reasonable and probable cause ceases, the prosecution

22 Maasdorp, The Institutes of Cape Law (1909) Book III Part II Chapter X. 23 (1883-18184) 2 SC 43

22

ought to be terminated as well and failure to do so should result in the person being

held liable for malicious prosecution.24

[51] Mr Budlender, in the alternative, submitted that in the event that this court finds

that the common law does not provide for this delict, the common law may appropriately

be developed, in light of the values contained in the Constitution. Building on the

foregoing, counsel relied on JS v LC 2016 (4) NR 939 (SC) para 28 where this court,

albeit in a different context, reaffirmed the approach followed in RH v DE 2014 (6) SA

436 (SCA) ([2014] ZASCA 133 to the effect that our courts are bound to develop the

common law in line with the changing legal convictions of the community.25 Counsel

further submitted that to the extent the common law is developed, the requirements for

a delict of malicious prosecution should mutatis mutandis apply to the delict of malicious

continuation of the prosecution.

[52] Mr Corbett, who argued the appeal on behalf of the respondent together with Mr

Hengari, submitted that the court a quo was correct in developing the common law to

accommodate the element of continuation or maintenance of the prosecution. Counsel

contended that the common law had to be developed to bring it in line with the

constitutional obligations imposed upon the prosecuting authority by Art 12(1)(b) read

with Art 88 of the Constitution. Counsel submitted that the prosecutorial authority is

required to exercise its mandate subject to the constitution and the laws of the country.

24 At 5425

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[53] With reference to Heyns v Venter 2004 (3) SA 2000 (T), counsel submitted that

courts were constitutionally obliged to develop the common law to bring it in line with the

spirit, purport and objects of the Bill of Rights. Counsel further submitted that in view of

the constitutional protection of human dignity, it was imperative to develop the ambit of

the delict of malicious prosecution. After referring to cases dealing with the development

of the common law,26 counsel urged the court to develop this principle in order to bring

our common law in line with the constitutional obligations imposed upon the prosecuting

authority.

[54] Counsel also relied on decisions of Australian courts in Zreika v State of New

South Wales27 and Hathaway v State of New South Wales28 for this approach. In the

course of explaining the requirement of reasonable and probable cause, the courts held

that the absence of a reasonable and probable cause at an identifiable event during the

criminal proceedings and where the prosecution is not stopped, gives rise to a delictual

claim based on malicious continuation of the prosecution.

[55] Although it may be the case that there are no explicit authorities within our

jurisdiction on the issue, on a careful analysis of the old persuasive South African

sources, I am unable to agree with the holding of the court a quo that it was necessary

to develop the common law in this case.

26 JS v LC 2016 (4) NR 939 (SC); RH v DE 2014 (6) SA 436 (SCA) ([2014] ZASCA 13327 2011 NSWDC 6728 2009 NSWSC 116

24

[56] As previously noted, in Van Noorden v Wiese De Villiers CJ stated that he did not

know of any case in which it was held that if a person believed an offence had been

committed, and other facts were brought to his notice which showed that no offence had

been committed, he would still be justified in proceeding in his original intention. The

Chief Justice pertinently observed that it was in the interest of the public that the

offenders were punished but it was also a policy of the law that maintaining the

prosecution without reasonable and probable cause must not be allowed and

encouraged.

[57] The propositions put forth in the Van Noorden matter confirm the principle

enunciated by Maasdorp (supra) where he, after a thorough consideration of the

authorities on the common law and decided cases, stated that as regards the element

of reasonable and probable cause, this element must be present not only at the

beginning of a prosecution, but throughout the course of the prosecution up to its very

termination. Maasdorp puts the position thus:

‘As regards reasonable and probable cause, it should be added that these elements

must be present not only at the beginning of a prosecution, but throughout the

prosecution up to its very termination. If, therefore, facts come to the knowledge of the

complainant or person instituting the criminal proceedings at any time during their

continuance, showing that no crime or offence has actually been committed by the

accused person, he will be bound to give notice to the authorities, and to stop the

prosecution, and if he fails to do so, he will be liable in damages.’

[58] Another case instructive in this regard is the Hathaway matter on which counsel

for the respondent relied for the proposition that the common law needed to be

25

developed to include a delict for maintaining a prosecution without reasonable and

probable cause. In that case, it was held that if the prosecutor became aware during the

criminal proceedings that the essential reasonable and probable cause that existed at

the commencement of the case was no longer in existence, the prosecutor ought to

terminate the prosecution, and if he or she fails to do so, he or she may be liable for

damages. These sources appear to recognize the delict of malicious prosecution from

its initiation to the end. This interpretation is consistent with the consideration that the

requirements for the initiation and continuation of malicious prosecution are the same.

[59] In light of the above persuasive sources, the finding by the court a quo that it was

necessary to develop our common law to include a delict based on malicious

continuation or maintenance of a prosecution cannot be supported. While it may be

necessary in appropriate cases to develop the common law to bring it in line with the

values espoused in our constitution, on the facts of this case it was not necessary to

develop the common law as the delict of malicious continuation of a prosecution has

been recognized at common law.

[60] As to the workable standard for the continuation of a malicious prosecution, the

court a quo was of the view that the five requirements the plaintiff must prove in a claim

of malicious prosecution as laid down in Akuake v Jansen van Rensburg were also

applicable to a claim for malicious continuation of a prosecution. In my considered view,

that is indeed the proper approach to the issue (except that maintaining the prosecution

replaces initiating the prosecution as a requirement).

26

[61] Insofar as the claim for maliciously maintaining the prosecution is concerned,

requirements (a) and (d) identified in para [38] of this judgment are not disputed by the

appellants. As regards requirement (e), it was noted earlier that the parties had agreed

to separate the issue of liability from quantum, with the latter issue to be determined at a

later stage. Consequently, we were only called upon to determine whether or not the

PG had acted without reasonable and probable cause, and with malice in maintaining

the prosecution beyond November 2011.

[62] It was held in the court below that viewed objectively, although the PG had

reasonable and probable cause to institute the prosecution, she lacked reasonable and

probable cause to maintain the prosecution from November 2011 onwards. In its

reasoning for this finding the High Court stated that three of the four witnesses called by

the State (including the respondent’s ex-wife) failed to identify the respondent during the

criminal trial. The court a quo went on to state that the appellants also failed to establish

any inculpating evidence against the respondent. The court also reasoned that the

further investigations requested by the prosecution after the review of the evidence in

November 2010 was an indication that the prosecution did not have sufficient evidence

upon which the respondent could be convicted in the first place.

[63] The court a quo also found that the PG, in particular Mr July, one of the

prosecutors who had the conduct of the case at the criminal trial and who testified on

behalf of the appellants in the civil claim, had no sufficient basis for an honest belief in

27

the case his team maintained from November 2011. In this respect, the court stated that

Mr July knew from November 2011 that he lacked reasonable grounds for continuing

with the proceedings, but kept them going in the hope that some incriminating evidence

would ‘miraculously turn up’. Despite accepting that Mr July did not harbour any ill will or

spite against the respondent, the court in the same vein held that there was evidence of

malice on Mr July’s part in maintaining the prosecution from November 2011 onwards.

The court found that Mr July ‘had no sufficient basis for any honest belief in the case he

maintained at this stage.’ In this respect, the court made an unfortunate finding of

dishonesty on the part of Mr July. This finding is however not supported by counsel for

the respondent.

[64] As previously observed, the court inferred malice from the following

circumstances: (a) that the prosecutor failed to carry out continuous appraisals of the

evidence against the respondent; (b) that despite being aware of the exceptional

circumstances of the case such as the number of accused persons and witnesses to

testify, the prosecutorial authority failed to comply with its constitutional mandate in

mobilizing sufficient human resources in the form of more prosecutors to deal with the

case within a reasonable period; and that, despite knowing that there was no case

against the respondent, the prosecutorial authority continued with the prosecution.

The reasonable and probable cause requirement

28

[65] In Waterhouse v Shields29, Gardiner J cited with approval the definition of

‘reasonable and probable cause’ originally developed by Hawkins J in Hicks v

Faulkner,30 which is usually followed in English law and has been accepted by courts in

South Africa. The phrase has been understood to mean:

‘[A]n honest belief in the guilt of the accused based upon a full conviction, founded on

reasonable grounds, of the existence of a state of circumstances, which assuming them

to be true, would reasonably lead to any ordinary prudent and cautious man, placed in

the position of the accuser, to the conclusion that the person charged was probably

guilty of the crime imputed.’

[66] In Glinski v Mclver 1962 (1) All ER 696 (HL), in the course of explaining what

‘belief in the person’s guilt’ entailed, Lord Denning cautioned that the use of the word

‘guilty’ in the above definition might be misleading. In the Law Lord’s view, ‘belief in the

person’s guilt’ implies that in order to have a reasonable and probable cause, the

person who brings a prosecution, must at his peril, be sure of the guilt of the accused,

as a jury (in the English system) or a trial judge (in our system) must before they

convict. Whereas in truth what the person who brings the prosecution must do is satisfy

himself or herself that ‘there is a proper case to lay before’ the court. After all, he or she

can neither judge whether the witnesses are telling the truth nor can he know what

defences the accused may set up. According to Lord Denning, the determination of the

guilt or innocence of the accused remains the duty of the trial court.31

29 1924 CPD 155 at 16230 1878 8 QBD 167 at 17131 At 709I-710A

29

[67] In Prinsloo and another v Newman32 the South African Appellate Division held

that the concept of reasonable and probable cause involves both a subjective and an

objective element.33 As an objective consideration, the defendant must have sufficient

facts from which a reasonable person could have concluded that the plaintiff had

committed the offence or crime charged. As to the subjective element, the defendant

must have subjectively held an honest belief in the guilt of the plaintiff. It accordingly

follows that in a claim for malicious continuation of a prosecution on the facts and

circumstances similar to those obtaining in this appeal, there has to be a finding as to

the subjective state of mind of the prosecutor as well as an objective consideration of

the adequacy of the evidence available to him or her. The court in Prinsloo v Newman

also held that a defendant will not be liable if there exist, objectively speaking,

reasonable grounds for the prosecution and he or she, subjectively believed in the

plaintiff’s guilt. This approach was followed by the South African Supreme Court of

Appeal in Relyant Trading (Pty) Ltd v Shongwe.34

[68] As explained by Schreiner JA in Beckenstrater v Rottcher and another,35 when it

is alleged that a defendant had no reasonable and probable cause for prosecuting, it

means that he or she did not have such information as would lead a reasonable person

to conclude that the plaintiff had probably been guilty of the offence charged; if, despite

being in possession of such information, the defendant is shown to not have believed in

32 1975 (1) SA 481 (A) 33 At 495H34 At para 14 35 1955 (1) SA 129 (A) at 136A-B

30

the plaintiff's guilt, a subjective element comes into play and disproves the existence of

a reasonable and probable cause on the part of the defendant.

[69] Hawkins J pointed out in Hicks v Faulkner above, that the question of reasonable

and probable cause depends not upon the actual existence, but upon the reasonable

bona fide belief in the existence of such state of things as would amount to a

justification of the course pursued in the making of the allegation complained of.36 The

learned judge was thus of the view that when applying the objective and subjective

tests, sight should not be lost of the distinction drawn between the facts required to

establish the actual guilt of the plaintiff and those required to establish a reasonable

bona fide belief in the guilt of the plaintiff, as many facts admissible to prove the latter

would be wholly inadmissible to prove the former.37 This is an important distinction that

the court a quo appears to have overlooked. As a consequence of this error, the court

below impermissibly adopted an approach of conducting an analysis of the evidence

proffered against the respondent as if it was evaluating the evidence in a criminal trial.

[70] Accordingly, the court a quo held that the PG and Mr July lacked reasonable and

probable cause to continue with the prosecution from November 2011. The lack of

reasonable and probable cause attributed to the PG and Mr July appears from the

following passages in the judgment of the High Court:

‘[197] I am persuaded on the balance of probabilities that the defendant lacked

reasonable and probable cause to continue with the prosecution from November 201038

36 At 17337 Id.38 This should have read November 2011.

31

(sic). As to the objective standpoint, the following circumstances were known to the

second defendant and or her employees:

a) The lack of witnesses identifying the plaintiff as the offender;

It was clear from the evidence before court that three of the four witnesses who

testified against the plaintiff, failed to identify him in court. It is important to note that

one of these witnesses was Ms. Highness Chikuchiya, the former wife of the plaintiff.

b) The failure to establish any inculpating evidence between the plaintiff and anyone

associated with him in the commission of the offences;

According to the evidence of the defence witnesses, the plaintiff was seen in the

company of the rebel leader, Mr. Bennet Mutuso and was also arrested in the same

vehicle with Bennet Mutuso. The plaintiff was cross-examined on this aspect and

denied any association with Bennet Mutuso and he informed the court that he did not

know Bennet Mutuso before their arrest. Bennet Mutuso did not come to his house

as alleged and the plaintiff denied being related to him. There was no evidence or

finding that his denials were false or contrived.

c) The fact that the November 2010 review of the evidence prompted a further

investigation in this matter;

The second defendant informed the court that it was humanly impossible to have

appraisals of the evidence of individual accused persons throughout the trial. They

have managed to do so during November 2010, and that they asked the first

defendant to do a further investigation and that investigations were done, and the

defence lawyers for the plaintiff successfully objected to the admission of this new

evidence.’

[71] Before us it was contended on behalf of the appellants that having regard to the

pleadings and the evidence, the court a quo was not justified in holding that the PG

lacked reasonable and probable cause to continue with the prosecution from November

2011.

32

[72] Counsel for the appellants argued that although it was the case that the

witnesses who named the respondent in their witness statements failed to identify him

during the trial, there was evidence aliunde incriminating the respondent. Counsel

contended that it was established in the criminal trial that the respondent is the same

person witnesses referred to in their sworn statements as Shine (sometimes spelt as

‘Shain’ or ‘Shaini)’ Mahupelo. In this respect, counsel referred the court to pertinent

parts of the testimonies of the witnesses who were called on behalf of the State, which I

find necessary to briefly recount.

[73] Hamlet Muzwaki testified that ‘Shine’ Mahupelo bought food, which was taken to

the rebels in the bush during the ‘evening time’. The respondent’s ex-wife, Highness

Chakusiya Lubinda, testified that her husband, Richwell Mahupelo, personally brought

food to their house, which was locked in a hut and later taken away by unknown

persons at night. She further testified that when asked for whom the food was intended,

her husband refused to reveal. Another witness, Given Earthquake Tubaleye, told the

court that he saw Shine Mahupelo offload food which was then taken by Starline

Tabakuza and Kennedy Tabakuza to Zambia where mealie meal was exchanged for

meat. It was witness Sinjabaa Hobby Habaini’s evidence that he saw Bennet Mutuso in

the company of Richwell Mahupelo and the former was carrying a travel bag and an AK

47 rifle. One Agrey Mwaba was the driver of the motor vehicle in question.

[74] Counsel further rightly contended that during the criminal trial the respondent did

not dispute that the witnesses who mentioned his name were referring to him. It was

33

further correctly contended that the respondent accepted during the trial that the witness

statements in possession of the prosecution made allegations concerning him. The

respondent further accepted that if the allegations were true, they would implicate him in

the commission of the offences charged, but he maintained that the allegations were

false. According to counsel, based on this evidence, the PG reasonably believed that

the respondent had a case to answer beyond November 2011.

[75] It was also submitted that neither the PG nor those delegated by her were in a

position to know that all the evidence that would implicate the respondent was

presented and that all the witnesses that could implicate the respondent had completed

their testimonies, because they did not perform regular appraisals of the evidence with

respect to each accused person. Counsel argued that the contention made on behalf of

the respondent that the criminal proceedings should have been terminated by March

2006 was misplaced as by this time not all witnesses that named the respondent had

testified. Counsel submitted that the trial record reveals that the last witness testified

only on 6 June 2011.

[76] Counsel further pointed out that it could have been risky and prejudicial to the

State’s case to stop the prosecution at any of the stages proposed by the respondent,

because there were instances where witnesses implicated certain accused persons that

they did not refer to in their written statements to the police. According to counsel, there

was a possibility that witnesses called after November 2011 could implicate the

respondent. It was also contended that based on the available witness statements and

34

the evidence during the trial, common purpose or a conspiracy to overthrow the

Namibian government was prima facie established and as such, the second appellant

believed that there was a possibility that the State’s case could be strengthened during

the defence case.

[77] Counsel for the respondent in support of the judgment a quo argued that had the

PG and/or her employees carried out regular appraisals of the evidence at their

disposal, the length of the trial against those accused persons not found guilty and

discharged at the close of the State case could have been shortened. According to

counsel, if regular assessments of the evidence were carried out, the PG and/or her

employees would have realised that they did not have sufficient evidence to continue

with the prosecution of the respondent beyond March 2006, alternatively November

2011.

[78] On behalf of the respondent, counsel also objected to the argument that it could

have been risky and prejudicial to the State’s case to stop the prosecution at any of the

stages advanced in argument by the respondent. Counsel argued that such a belief is

entirely based upon speculation and thus could not be reasonably held by the PG

and/or her employees.

[79] Counsel further submitted that it was also speculative on the part of the PG

and/or her employees to hold the belief that their case based on common purpose or

conspiracy could be strengthened during the case of the defence. Counsel submitted

35

that the criminal trial against all the accused persons took ‘fifteen years’ to finalise.

Counsel contended that when one has regard to the proposition advanced by the PG, it

becomes apparent that the PG found it acceptable to put the respondent on trial for 15

years (should he not have been discharged) on account of ‘flimsy evidence’, in the hope

that the respondent himself or his co-accused would build a case against him. Counsel

contended that the continued prosecution of the respondent on this basis – even if there

was a reasonable and probable cause to initiate the prosecution– rendered it malicious,

in the sense of dolus eventualis on the part of the PG and/or her employees.

[80] He further submitted that a prior agreement or conspiracy to commit the crime is

one of the core requirements of the doctrine of common purpose and that there was no

evidence of a prior agreement in this case. Counsel relies for this proposition on the

remarks by Friedman J in S v Banda and others39 where the learned Judge at 501F

observed:

‘In the absence of a prior agreement or conspiracy, the doctrine of common purpose

may not be used as a method or technique to subsume the guilt of all the accused

without anything more. It cannot operate as a dragnet operation systematically to draw

all the accused. Association by way of participation, and the mens rea of each accused

person involved, are necessary and essential prerequisites.’ (Emphasis is mine).

[81] Counsel argued that the remarks quoted above apply with equal force to the

present matter. Counsel was of course correct in pointing out that three out of the four

witnesses who testified against the respondent failed to identify him during the criminal

39 1990 (3) SA 466 (BG)

36

trial. The remaining witness did not give cogent evidence of the respondent’s

association with the commission of the offences charged. That led him to conclude his

argument on this aspect that there could be no suggestion that the prosecutorial

authority had any evidence to implicate the respondent in the commission of the

offences and crimes in the indictment, whether by way of direct involvement or an act of

association sufficient to satisfy the above requirements in regard to common purpose

and/or conspiracy. I pause to observe that by relying on the passage in Banda quoted

above, counsel appears to have overlooked the fact that in this case the prosecution

relied on conspiracy as a basis for the prosecution of the respondent and that

conspiracy is one of the exceptions Friedman J referred to.

Analysis of the evidence [82] It seems to me nevertheless that the fundamental question to be addressed at

this stage is this: If the initiation of the prosecution was lawful and permissible, what

changed during the criminal trial that led the court a quo to conclude that there was

insufficient evidence to incriminate the respondent and that as such, the prosecution

should have been terminated by November 2011?

[83] On the analysis of the evidence placed before the High Court, it is evident that

the only thing that appears to have changed was the inability of the three witnesses,

including the respondent’s ex-wife, to identify the respondent in court. It is not surprising

that both the respondent and the trial court were puzzled that the respondent’s ex-wife

could not recognise and identify the respondent in court. It is indeed an extraordinary

37

and astonishing occurrence. However, the witnesses’ inability to identify the respondent

in the dock does not have the automatic consequence that their evidence had to be

summarily rejected. To my mind the failure by the ex-wife to identify her ex-husband

smacked of a contrived stratagem on her part and that of other witnesses to deliberately

not identify the respondent. This finding is in line with Mr July’s evidence that it became

a strategy of witnesses during consultations to say that they would be able to identify

the accused person referred to in their statements, but when asked to identify such

accused person in court they would fail to do so. One aspect that is crystal clear on the

court record is that the person variously referred to by the witnesses as ‘Shine

Mahupelo’ or ‘Shaini Mahupelo’ or Richwell Mahupelo is the respondent. In fact, the

respondent conceded that the name ‘Shaini’ mentioned by some witnesses in their

statements at the criminal trial was his nickname and that the allegations made by the

witnesses concerned him. He maintained, however, that the allegations were false.

[84] Mr. July explained that the most reasonable justification for their failure to identify

the respondent in court was due to close family relations between the witnesses and the

accused persons, or fear of harassment. I agree with Mr. July’s evidence that an

inescapable conclusion that may be made of this state of affairs is that the identity of the

respondent was not disputed, and further that the main evidence against the respondent

was that he had been providing foodstuff to rebels and this is precisely what is

contained in the witnesses’ statements. That is also what the witnesses testified about.

38

[85] I thus agree with the appellants in their submission that although the criminal

court found that there was insufficient evidence to secure a conviction for the purposes

of the criminal law, there was evidence against the respondent establishing reasonable

and probable cause on the part of the prosecution not only to initiate the prosecution,

but also to continue with it right up to the end of the State case.

[86] Additional objective evidence was that the respondent was arrested together

with Bennet Mutuso, who was a well-known rebel leader, while travelling in a car at

night. The evidence from the respondent’s wife that the respondent used to take food in

the bush is significant when considered against the backdrop of the 2 August 1999

attack. According to Mr July, the prosecution had information that the rebels were being

supplied with food by other people and that the fact that the respondent was in the

company of Mutuso after the 2 August 1999 attack meant that he had intimate

connection to Mutuso.

[87] It is trite that the principles and considerations applicable in a criminal trial to

secure a conviction of an accused person are different from those relevant in the

consideration of the question of reasonable and probable cause in a malicious

prosecution claim. Thus, the court in a claim for malicious prosecution is not concerned

with the question of whether the respondent was guilty of the offences with which he

stood charged. That was the concern of the criminal court. The legal question the court

a quo was called upon to determine is rather whether, given the pleadings and evidence

before it, can it be said that the PG subjectively and objectively lacked reasonable and

39

probable cause to continue with the prosecution and that notwithstanding that

realization the PG continued to act, reckless as to the consequences of her conduct? In

my respectful view, that question should have been answered in the negative.

[88] As to animus iniuriandi, Mr July gave evidence that he honestly believed in the

case he maintained against the respondent from November 2011. It was not put to him

that he was not telling the truth in that regard or in any other respect. His evidence was

neither gainsaid nor was there a basis for it to be rejected. In my respectful view, his

undisputed evidence should have been accepted by the High Court. As to an attempt to

obtain additional evidence to bolster the State’s case, this step in itself does not appear

to demonstrate that the prosecution concluded that it did not have a case against the

respondent and should therefore have concluded its case then. First, the evidence

sought was not in respect of the respondent only, but in respect of all accused persons.

Secondly, although the evidence was ultimately not admitted, some accused persons

were nevertheless convicted, which demonstrates that the search for additional

evidence was not entirely motivated by the lack of evidence in respect of all accused

persons.

[89] As regards the doctrine of common purpose, I find the statements on this aspect

of the law by Moseneke J in S v Thebus and another40 worthy of adoption. At para 19 of

the judgment the learned Justice said the following:

‘The liability requirements of a joint criminal enterprise fall into two categories. The first

arises where there is a prior agreement, express or implied, to commit a common

40 2003 (2) SACR 319 (CC)

40

offence. In the second category, no such prior agreement exists or is proved. The liability

arises from an active association and participation in a common criminal design with the

requisite blameworthy state of mind.’

[90] An overt act of association may also be in the form of an omission, especially in

the crime of high treason. In this regard Friedman J in S v Banda matter at 512A-B

stated as follows:

'According to the authorities that I have cited the crime of treason provides an exception

to the rule as to mere non-disclosure. It seems clear that anyone who, knowing of the

commission of this crime, refrains from giving information to the authorities must by

reason of this mere non-disclosure be regarded as having taken part in treasonable

conduct. Even bare knowledge of its attempt or commencement without disclosure of the

same to the authorities may render a person liable, even though the person has in no

way taken part in the plans of the principal offender.’

[91] At the hearing of this matter, counsel for the appellants was at pains to argue that

the findings of the court a quo were, on the facts and evidence, wrong. Counsel

submitted that the evidence tendered during the criminal trial established that the

respondent had actively associated himself with the crimes for which he stood charged.

Counsel argued that the evidence in possession of the prosecutorial authority at the

initiation of the prosecution established that the respondent actively advocated for the

secession of the region from the rest of the country. The respondent had prior

knowledge of the plan for the region to secede the region from the rest of the country,

but despite this knowledge, he failed to give such information to the authorities of the

planned attack or the actual commission of the crimes contained in the indictment. In

addition, he supplied food to the people who were preparing to attack the installations in

41

and around Katima Mulilo. He was arrested while in the company of a rebel leader who

was armed with an AK 47 rifle. Counsel argued that when all these facts and evidence

are wholly considered, the appellants were justified in holding a firm belief that they had

prima facie established the requirement of the doctrine of common purpose or

conspiracy.

[92] I agree with the argument advanced by the appellants that when the pleadings

and evidence are assessed in their entirety, the fact that certain witnesses who had

named the respondent in their sworn statements failed to identify him during the trial

does not mean that there was no inculpatory evidence against the respondent. The

failure to identify the respondent does not in itself train smash the veracity of the

testimonies of the witnesses as to what they alleged the respondent had done. I am

therefore of the considered opinion that based on the case pleaded by the appellants,

the PG and her delegates had an honest belief founded on reasonable grounds that the

continuation of the prosecution was justified. Consequently, that part of the judgment a

quo dealing with this aspect ought to be corrected.

[93] As to the requirements of reasonable and probable cause, and malice, it is

absolutely indispensable for the purpose of this action that the respondent must prove

that the prosecution was maintained maliciously and without reasonable and probable

cause.

42

[94] Whereas the PG bore the onus of proving the guilt of the respondent in the

criminal trial, in the claim for malicious prosecution the respondent bore the onus to

prove the absence of reasonable and probable cause and animus injuria on the part of

the PG. If one or other of these elements is lacking, then a defendant will not be held

liable. It is thus improbable to find that a defendant acted maliciously where there is

reasonable and probable cause to prosecute or to find that the defendant who was

motivated by malice had reasonable and probable cause to prosecute. The finding that

there was reasonable and probable cause to prosecute invariably neutralises the

existence of malice in the circumstances as the latter is contingent on the former. It is

my considered opinion that viewed objectively, there existed reasonable grounds for the

prosecution of the respondent and viewed subjectively, the prosecuting team believed in

the respondent’s guilt.

[95] In light of the above findings, I am in agreement with counsel for the appellants

that the respondent’s claim based on the malicious continuation of his prosecution falls

to be dismissed on this ground alone. The remaining aspect of the case is only that part

of the appeal pertaining to the claim for constitutional damages. The respondent’s

pleaded grounds of the failure to separate the trial; the failure to stop the prosecution

and the alleged inordinate length of the criminal trial appear to me to relate more to the

constitutional question and as such it is best that they are dealt with under the claim for

constitutional damages.

43

[96] As to the claim based on constitutional damages, it will be recalled that the court

a quo did not decide this issue for the reason that the claim based on maliciously

maintaining the prosecution succeeded. In this manner, the court a quo disposed of the

matter without considering the merits and demerits of the constitutional question. The

question that now arises is whether this court should decide this alternative claim as a

court of first and last instance.

[97] This court has had occasions to consider the implications of an apex court sitting

as a court of first and last instance on important constitutional questions. In Teek v

President of the Republic of Namibia and others,41 for example, Ngcobo AJA at para 41

with reference to cases of the Constitutional Court of South African, stated that it was

undesirable for an apex court to sit as a court of first and last instance, where matters

are decided finally without the possibility of appealing against the decision given.

[98] The learned judge further stated that experience had shown that decisions were

more likely to be correct if more than one court had been required to consider and

decide the issues raised. In such circumstances, the losing party has an opportunity of

challenging the reasoning on which the first judgment is based, and of reconsidering

and refining arguments previously raised in the light of such judgment. I respectfully

endorse such a wise and pragmatic approach.

[99] Accepting the sentiments expressed by Ngcobo AJA, I am convinced that the

benefits that may be derived from the views of the judges of the High Court on such a

41 2015 (1) 58 (SC)

44

novel point of law and an issue of immense constitutional importance by far outweigh

the election of departing from the approach so carefully considered and admirably

articulated by Ngcobo AJA. This approach will not only afford the losing party an

opportunity to participate in appeal proceedings, if dissatisfied with the decision of the

High Court but it will also grant the apex court an occasion to fully consider and decide

a matter of great public and constitutional importance. I should, however, not be

understood to suggest that this is the approach to be followed in each and every case.

Where compelling reasons exit in a particular case, this court may deviate from this

approach. In my respectful view, however, there are compelling reasons on the facts of

this case for this court to not decide the matter as a court of first and last instance. For

all these reasons, I am of the view that, the constitutional question should first be

decided by the court below.

Costs

[100] In their notice of appeal, the appellants asked for a costs order in this court,

including the costs of one instructing and two instructed counsel. The respondent on his

part also asked for costs should the appeal be dismissed. However, it came to light

during oral submissions that counsel for the respondent argued the appeal on

instructions of the Director of Legal Aid. Section 18 of the Legal Aid Act 29 of 1990

states that ‘no order as to costs shall be made against the State in or in connection with

any proceedings in respect of which legal aid was granted and neither shall the State be

liable for any costs awarded in any such proceedings.’ If I understand this provision

correctly, ordering the respondent to pay costs in the circumstances of this case would

45

amount to ordering the State to pay the costs of the appeal. In any event, this is not an

appropriate case to make a costs order as the respondent sought to ventilate legal

principles of great public and constitutional importance, some of which have not hitherto

been traversed by our courts. In those circumstances, I propose that no order as to

costs should be made.

Order

[101] Accordingly, the following order is made:

(a) The appeal is upheld in part.

(b) The portion of the order of the court a quo upholding the respondent’s

alternative claim based on malicious continuation of the prosecution without

reasonable and probable cause is set aside.

(c) The question of whether or not the respondent should be awarded

constitutional damages is referred back to the High Court for determination

in accordance with case management rules before any judge in the event

that the learned judge who presided over the matter in the High Court is no

longer available.

(d) No order as to costs is made.

____________________SHIVUTE CJ

46

____________________CHOMBA AJA

____________________MOKGORO AJA

APPEARANCES:

APPELLANTS: G Budlender SC ( with him N Marcus

and S Namandje)

Instructed by Government Attorney

RESPONDENT: AW Corbett (with him U Hengari)

Instructed by Legal Aid Namibia